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Friday, June 24, 2016

The legal skirmish between Kearny and state officials over the fate of the only remaining North Jersey landfill that accepts heavy construction debris led a Superior Court judge on Friday to recommend to each side that they try to negotiate a compromise before the 11-year lease agreement expires late next week.

“I strongly suggest that all sides talk to each other before I reach my decision,” said Judge Peter Bariso after a 40-minute hearing in Superior Court in Hudson County. “I have issues with both sides, and I can tell you that somebody is going to win and somebody is going to lose.”

Bariso added that there is no “Solomonic approach” that would satisfy both sides on the issues of whether the New Jersey Sports and Exposition Authority — acting with powers formerly held by the Meadowlands Commission before the agencies merged last year — can seize the Keegan Landfill via eminent domain. Also at issue is who will be responsible for post-closure costs that Jim Bruno, an attorney for Kearny, said could reach $30 million.

Town attorneys have asked the court for a ruling to prevent the sports authority’s takeover, claiming that the agency is acting in “bad faith.”

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While Bruno and another attorney representing Kearny, Greg Castano, were challenged by the judge on why the agency couldn’t use its constitutional power to condemn land it deems necessary for its operations, Jay Stewart, an attorney for the sports authority, faced even more withering questioning.

Sports authority officials say that the landfill — the only one left in North Jersey that accepts heavy construction materials — must remain open for another 3½ years to provide enough revenue in tipping fees revenue to fund its closure after that point.

“Here’s the problem I have: Why are you taking this property?” Bariso asked Stewart. “And I don’t want to hear ‘because we can.’”

Bariso added that because the eminent domain notice did not include a termination date of the end of 2019 — the point at which the sports authority has said it would be able to afford to close the landfill — it bolstered concerns that the agency might actually want to keep the landfill open “in perpetuity.”

“That raises an issue in my mind,” Bariso said.

Ralph Marra, a sports authority executive and a former acting U.S. Attorney for the District of New Jersey, then rose from the gallery and stepped up to the attorney’s table.

“If we get stuck with post-closure obligations, then we need to own” the landfill, Marra said. “Kearny has had a history of being totally unreliable.”

The sports authority’s reply brief earlier this week described the history of the landfill — which opened in the 1950s and closed in 1972 — as “torturous.”

The state Department of Environmental Protection in 1987 even ordered the town to cover up the landfill, the sports authority brief noted, to prevent “the yearly fires that led to serious accidents and the closing of interstate highways.”

A deal was reached between the town and the Meadowlands Commission in 2005 which called for the landfill to be reopened, with the revenues helping to fund the post-closure costs of several other Meadowlands landfills. That agreement called for the landfill to be permanently closed by mid-2016, with the Bergen Avenue site then being converted to recreational use.

The 2005 lease calls for the town to “perform required post-closure activities,” but each side insisted it was not responsible for funding that work.

Castano referred to a flier that the commission mailed to residents in 2005 that promised the 2016 closure.

“Don’t people have a right to rely on representations made by the government?” Castano asked. “I say that they do.”

But state officials have referenced the importance of the Keegan Landfill after Superstorm Sandy, since it meant that construction debris from the storm did not have to be hauled out of state. The Passaic Valley Sewage Commission also would see its expenses increase by $8.1 million in the next 3½ years if Keegan could no longer serve as a disposal site for that agency’s trash, sports authority officials said.

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